Thursday, August 07, 2014

"Freedom of Religion and the Freedom of the Church"

Over at the "Liberty Law Forum," I have posted a short essay called "Freedom of Religion and the Freedom of the Church." (It's about what's probably my hobby-horse issue, and is adapted from this piece, which came out a little while ago in the Journal of Contemporary Legal Issues.) Critical responses will be added in the coming days from some leading law-and-religion scholars -- I'm looking forward to them (nervously). Here's a bit:

Michael McConnell observed a little while ago that although “‘freedom of the church’ was the first kind of religious freedom to appear in the western world, [it] got short shrift from the Court for decades.”[4] However, he continued, “it has again taken center stage.” It seems that it has.[5] Indeed, Chief Justice Roberts, in his opinion in the Hosanna-Tabor case (2012), gestured toward its place in Magna Carta on the way to concluding for a unanimous court that the Constitution “bar[s] the government from interfering with the decision of a religious group to fire one of its ministers.”[6]

But, what is this “great idea”? Berman and others have discussed at length and in depth what it meant during, around, and after the Investiture Crisis of the 11th century. What, though, does and should it mean today?

Wednesday, April 01, 2009

Does Scalia abandon textualism in Entergy Corp v. Riverkeeper?

I think so. If I am right, then Entergy Corp, handed down today, is a significant defeat for textualism at the hands of its most zealous proponent.

The issue in Entergy Corp was whether the EPA could permit power plants to abstain from using the most environmentally safe "cooling water intake structures" on the grounds that the costs of these structures greatly exceeded their environmental benefits. The relevant statutory language of the Clean Water Act provides that the power plants must "use the best technology available for minimizing adverse environmental impact.” 33 U. S. C. §1326(b). Other provisions of the Act explicitly provide that the EPA can compare costs and benefits when defining the "best" technology that industry must adopt. The absence in section 1326(b) of any reference to cost-based reasons to abstain from imposing the best available technology, therefore, would seem to be a good textual reason to bar the EPA from reducing industry's obligations when the costs of technology exceed the technology's economic benefits. Expressio unius est exclusio alterius, right?

Nope: Justice Scalia abandons this textual argument in favor of Chevron deference. He reasons that the expressio unius argument, taken to its logical extreme, would require the EPA to impose billions of dollars in safeguards to spare the life of a single crab from being sucked into an intake pipe -- a drastic consequence that even Riverkeeper, Inc. would not endorse. "[I]f respondents’ and the dissent’s conclusion regarding the import of §1326(b)’s silence is correct," Justice Scalia reasoned, then "it is a fortiori true that the BTA test permits no consideration of cost whatsoever, not even the “cost-effectiveness” and “feasibility” analysis that the Second Circuit approved, that the dissent would approve, and that respondents acknowledge."

It is true that textualism might have such drastic consequences -- but so what? Pereat Mundus, Fiat Text: If the text is really unambiguous, then a fall-on-your sword textualist would not get past "Step 1" Chevron analysis. Justice Scalia is famous for arguing in his 1989 Duke Law Journal lectures that, as a textualist, he would be more reluctant to find statutory ambiguity sufficient to get past Chevron Step 1 than mushy purposivists. In his dissent last term in Begay v. United States, 128 S. Ct. 1581 (2008), Justice Scalia even hinted that purposivists were wimps who took “ever-ready refuge from the hardships of statutory text.” An uncharitable reader might suspect that the old crusader for textualism has gotten too soft to face up to those hardships himself.

Of course, textualists observe the Absurdity canon (although John Manning argues that they oughtn't). But why is it absurd to demand that the EPA spare a few more percentage points worth of river organisms by imposing $3.5 billion in costs on power plants? If the snail darter can defeat the Tellico Dam in the name of text, then why cannot a few extra millions of crustaceans and fish that would otherwise be sucked into utility intake pipes defeat those utilities' river-sucking cooling systems? I did not see an answer to this question in Justice Scalia's majority opinion.

Monday, December 29, 2008

Is federalism good for local governments?

Dan Markel asked me this question in a response to one of my earlier posts. I am on record as arguing that the feds ought to be constitutionally prohibited from empowering local governments to resist state law. Roderick M. Hills, Jr., Dissecting the State: The Use of Federal Law to Free State and Local Officials from Federal Control, 97 Mich. L. Rev. 1201, 1218-1225 (1998). The Court has leaned towards my position, at least as a rule of statutory construction, in Nixon v Missouri Municipal League, 541 U.S. 125 (2004)(a decision implicitly referenced by Dan in his query).

But it is a tribute to the wishy-washiness of my writing that my article was cited for the opposite proposition by Justice Scalia's dissent in Columbus v. Ours Garage & Wrecker Service, Inc., 536 U.S. 424, 448-49 (2002) -- namely, that the doctrine was so unclear that no firm constitutional rule against such federal liberation of local governments could be inferred from the Constitution. Admittedly, I had suggested that the precedents are ambiguous. Nestor Davidson has written a nice piece taking a position more favorable to federal liberation of cities than I did: See his Cooperative Localism: Federal-Local Collaboration in an Era of State Sovereignty, 93 Va. L. Rev. 959 (2007).

The Big Policy Issue is, I think, clearer than the doctrine: I actually think that federalization of local government law is bad for local power even when the feds purport to protect local governments from state law. I so argued in "Is Federalism Good for Localism? The Localist Case for Federalist Regimes," 221 J. L. & Politics 187 (2005). The reason is that local government officials likely have more influence over state legislatures than Congress: The Feds might look like they are local friendly in a particular case, but, in general, they just do not have the time or knowledge to behave like intelligent referees of local officials' inter-local disputes over tax base, territory, and legal powers. Mayors, in short, are fools to go to Congress for help: Their federal Big Brother will end up swallowing them up in a morass of Congressional indifference and incompetence.

There are scholars who have made the opposite argument -- notably, Frank Cross, The Folly of Federalism, 24 Cardozo L. Rev. 1 (2002). Cross argues that, if you like decentralization and local government, you should hate federalism, because states actually interfere with local governments' powers. I suggest that Cross got the data and argument wrong in my J.L. & Politics piece, but interested readers can check out the two articles and decide for themselves.

Friday, December 26, 2008

Local Democracy's struggle with ERISA Preemption

San Francisco is now locked in a struggle with business over whether subnational governments can mandate that employers provide their employees with health care benefits. The employers are claiming that ERISA preempts the mandate, and their argument illustrates the insidiously anti-democratic nature of preemption arguments. As a matter of policy, I tend to agree that funding public benefits like health care through mandates on employers is foolish. Such a finance mechanism interferes with the mobility of labor and discourages job creation. Far better, it seems to me, to provide health benefits through general taxes not incident on employment.

But here is where I am a die-hard lover of federalism: As dumb as employer mandates are, centralizing debate over health care through a broad construction of ERISA preemption is even dumber. Such centralization is an outrage against the democratic process both locally (by suppressing the efforts of those zany San Franciscans) and nationally (by letting Congress off the hook of confronting the relationship between health care and employment). San Francisco hurts no one but itself and its own residents by burdening business and driving away capital to the 'burbs. The claim that national businesses will suffer some external cost outside San Francisco from disuniform regulation is patently baloney: Any business that operates in any city already must uncontroversially incur the costs of researching and complying with local zoning codes, local taxes and fees, local building codes, local safety regulations, etc. The marginal cost of insuring that one's local branch complies with the local complying health care law is close to zero.

Therefore, you can imagine my delight when I read Judge William Fletcher's opinion in Golden Gate Restaurant Association v. San Francisco, 546 F.3d 639 (9th Cir. Sept 30th 2008), upholding San Francisco's mandate on employers employing between 20-99 persons to provide health benefits to their employees. The Golden Gate Restaurant Association argued that ERISA preempted the ordinance because the ordinance "related to" or "made reference to" ERISA benefit plans. Fletcher rejected this argument, which had been adopted by the Fourth and Second Circuits, reasoning that San Francisco's ordinance did not regulate the terms of any employers' ERISA plans but rather required employers to provide a dollar amount of benefits (roughly $1.17-1.76 per employee hour) regardless of the terms of any employment contract.

Judge Fletcher is right on the legal merits, in my view, for reasons too tedious to detain anyone except aficionados of federalism and/or ERISA. (I include a few of those reasons after the jump for the one or two readers who might conceivably care about such matters). But, as far as "decentralization policy" is concerned, Fletcher's opinion is a precarious victory for sane federalism -- precarious, because it is vulnerable to en banc and SCOTUS review. One can only hope that SCOTUS's recent endorsement of the presumption against preemption in Altria v. Good will slow down the madness that is ERISA preemption.

For those who care about ERISA, why do I claim that preempting San Francisco's ordinance is madness? The Restaurant Association is essentially making an effects-based preemption argument, asserting that SF's ordinance effectively requires employers to change their ERISA benefits plans to comply with San Francisco law. The folly of this argument, however, is that it proves too much: Lots of local laws might have effects on employers' incentives to provide contractual benefits. Medical malpractice lawsuits under state tort law might drive up the cost of insurance, leading the marginal employer to reduce employees' health care benefits. Local zoning law could -- indeed, does -- increase housing costs, which increases the relative attractiveness of housing benefits to employers. But no lawyer in their right mind would argue that these state and local laws "relate to" ERISA benefits plan, because these laws' obligations are not triggered by the existence of ERISA-covered employment benefits.

It is conceded that SF could not impose mandates on employers because they provide ERISA-covered benefits to their employees. But SF has not done so: The duties under the SF ordinance apply to every employer, regardless of whether those employers provide ERISA benefits -- or any benefits - -pursuant to contract. True, employers who provide health care benefits thereby comply with the ordinance. But employers who do not do so do not thereby escape the ordinance -- and it is this latter fact that makes the ordinance a simple mandate on businesses rather than a regulation of the terms of ERISA-covered plans.

Any other theory will draw the courts into a theory of preemption that could suck every state and local regulation of business into the maw of ERISA preemption -- an outcome utterly unintended by anyone in Congress in the 1970s, when ERISA was enacted. For courts to create such centralization without Congress' assent is, as I noted above, an outrage against common sense and subnational democracy. As I have argued elsewhere (Against Preemption: How Federalism Can Improve the Federal Legislative
Process, 82 N.Y.U. L. Rev. 1 (2007)), ERISA preemption has also absolved Congress of the duty to confront the problem of how health care benefits relate to employment. Preemption, in short, destroys both subnational and national democracy. So here's hoping that Judge Fletcher can sustain his blow for federalism.

"Which side are you on?"

Search me. One reason I chose to be an academic is to gain the right to choose my positions a la carte rather than from the prix fixe menu of Left-Right vacuities that dominate the punditocracy and blogosphere. So, for instance (to pull a random example out of thin air), it strikes me as inane to have a general ideological position on "unions," as if one should endorse or condemn together the baseball players' union, the corrections officers union in California, the Teamsters, or District Council 37. Likewise, it strikes me as absurd to think that, because I worry about the latest round of contracts between the public sector and New York City, that I am hostile even to public-sector unions in general. When Jerry Wurf organized the park workers against Robert Moses in the 1950s, that was a victory for justice against tyranny. When Wagner signed Executive Order 49 recognizing the right of the public-sector unions to engage in collective bargaining, that was a magna carta for labor. I think that it perfectly possible -- indeed, easy -- to hold these views and also believe that public-sector unions held a troubling veto over fiscal policy in the last round of CBA negotiations. Bloomberg was right to believe that '05 was the time to sock away money in a rainy day fund. That he surrendered so entirely on getting public employees to shoulder a bit of their health insurance premiums or work a bit longer strikes me as a small failure of democracy, if democracy means that one narrow constituency should not dominate the city's public life.

To respond to such a worry by angrily denouncing Wall Street types as greedy bastards who make too much money is a colossal non sequitur. Of course, Wall Street makes too much money: Indeed, they are another narrow constituency that tends illegitimately to dominate NYC life. (The bond underwriters tend to be the worst of the bunch in terms of excessive influence). Why would anyone think that worrying about District Council 37 somehow implies approving of Wall Street?

My hypothesis: Some academics have joined a sort of intellectual's trade union in which two positions -- disapproval of District Council 37 and love of Wall Street -- must somehow be bundled together as negotiating items. That sort of bundling of positions makes perfect sense in a two-party system as a means of simplifying ballots for busy voters: After all, Duverger's Law requires us to choose one of two sides. But it is senseless in an academic blog. When it comes to thinking and writing, we academics should put our union cards in our shoes and all be shameless scabs, choosing whichever intellectual position happens to yield the greatest payoff.

Friday, December 19, 2008

Altria v Good and SCOTUS' battle over preemption

SCOTUS's decision in Altria v. Good, handed down on Monday, is great news for friends of federalism. The Court held that the federal cigarette labeling act does not preempt private actions to enforce Maine's Unfair Trade Practices Act (MUTPA) against cigarette manufacturers who advertise that their cigarettes are less dangerous because they are "light" on tar. The 5-4 decision indicates that the tussle over preemption remains one of the most divisive issues before the Court and that Roberts and Alito (both dissenters in the 5-4 vote) are firm votes for preemption of state tort claims.

There is much to be said about the opinion, but I will highlight only two aspects that make Altria an especially important victory for federalism.

(1) As in Bates v. Dow Agrosciences, Justice Stevens managed to get a majority to resurrect the Rice v. Santa Fe Elevator presumption against preemption -- a presumption that most observers thought had been put on life support in Riegel v Medtronic. Scalia's majority in Riegel had simply ignored the presumption, finding the Preemption Clause in the Medical Devices Act to be unambiguous, but it is not obvious to me what made the preemption clause in Riegel so much clearer than the analogous clause in Altria. I guess that no legal concept is quite so ambiguous as the notion of "ambiguity."

(2) The Court based preemption on the formal proof required by state law rather than the effects of litigation on defendants' behavior. The majority's "express preemption" analysis turned on the fact that fraud claims in general required no proof of any harm to "health." (The plaintiff argued that the cigarettes' tar-reducing qualities would not, in fact, deliver low quantities of tar because consumers' predictable behavior -- e.g., compensatory smoking -- would result in precisely the same dosage of tar). Of course, such fraud lawsuits would predictably have big effects on cigarette advertising, given that there is no obvious way for tobacco companies to alter consumer behavior. But effects of state law on federal regulatory interests are apparently not sufficient to justify preemption of state law, if the state law is not aimed at producing such effects.

Of course, we federalism supporters are still waiting for the other shoe -- Wyeth v Levine -- to drop. I am guessing that the Court will rule for Wyeth based on the FDA's declarations favoring preemption -- but I'd be delighted if the Court defied my expectations.

All of which leads one to ask whether the public employees -- especially, the uniformed services -- will be re-negotiating their extraordinarily generous deals. In particular, Bloomberg and Patterson have been trying to put the "20 and out" benefit (retirement at full pension after 20 years) on the table. Back in the bad old days of 1973-1975, Felix Rohatyn was able to induce Victor Gotbaum, head of District Council 37 to accept wage and benefit concessions to save the City. Will we see a repeat of history a quarter-century later?

I suspend judgment on the normative question of whether public sector unions' power is a good or a bad thing. Perhaps this power should be treated as a welcome vestige of genuine working class power in an increasing inegalitarian society. As a pure matter of positive prediction, however, there is less room to debate: The wage and benefits package that the public sector has managed to extract will, if left unaltered, bankrupt the City.

Saturday, December 13, 2008

Obama's Revenge of the Nerds

For those of you who care about housing policy -- I teach land-use regulation -- Obama's choice of Shaun Donovan as Secretary of HUD is wonderful news. Donovan is Bloomberg's head of Housing Preservation & Development and has won widespread praise for his efforts to increase New York's housing supply. His mastery of the mind-numbing details of housing law and economics (for instance, the filtering of used units downwards and upwards, low-income housing tax credits, the 80-20 program) has made him famous amolng land-use oriented New Yorkers (admittedly, an odd demographic niche) as an outstanding example of wonky professionalism in the Bloomberg administration.

Of course, you have to like highly trained and fairly apolitical wonks in high office. Obama certainly seems to like them: The ratio of wonks to politicos in his picks seems to favor the former. Take, for example, his choice of Steven Chu for Secretary of Energy: Chu is the Nobel Prize-winner current director of the Lawrence Berkeley National Laboratory. Or consider Lisa Jackson, who is Obama's pick for EPA Administrator: Jackson is a chemical engineer and was a 16-year veteran at federal EPA before becoming head of New Jersey's Department of Environmental Protection. (To Bush II's credit, his second ('05) nominee for EPA, Stephen Johnson, had a scientific background and a lot of prior experience working in EPA).

Many people supported Obama because of his reputation for being a sort of latter-day Jimmy Stewart -- an outsider and idealist who would transform government. I was betting that Obama would be a latter-day John Quincy Adams -- a well-connected, well-educated, wonky sort of guy who would hire seasoned pros and governmental insiders with blue-chip academic credentials and lots of managerial experience. From Jimmy Carter to Bush II, we have had horse doctor's doses of candidates who brag about their ignorance of government under the euphemism of being "outside the beltway," a "maverick," an agent of "change," etc. These outsiders usually come to D.C. accompanied by a bevy of loyal consigliere who have no familiarity with the programs that they are charged with administering. So far -- thank goodness -- the wonks (Chu, Donovan, Jackson, Geithner, Summers, etc) have been in ascendant with Obama.

Will the Holder DOJ bring sanity to "material support" prosecutions?

The "Material Support" provision of the Anti-terrorism and Effective Death Penalty Act of 1996, 18 U.S.C. §2339B(a) is a troubling measure. The provision makes it a serious criminal offense to "knowingly provide[] material support or resources to a foreign terrorist organization," thereby creating something akin to a strict liability "abetting" offense. Such a law is an open invitation to frivolous or abusive prosecutions -- and I am not convinced that the DOJ has declined the invitation.

Suppose that a college friend who frequents radical mosques asks one to store an old suitcase filled with socks and ponchos in one's house. He says that the stuff is to help out freezing villagers in Waziristan. For letting him keep the stuff in one's apartment, one could be liable for a 15-year sentence, just so long as the government could show that one knew that that friend was affiliated with a terrorist organization. Likewise, suppose that one's brother is kidnapped by Al Qaeda in Mesopotamia, and one pays ransom to get him released. This is a criminal offense under the DOJ's view of the "material support" provision -- and DOJ has yet (to my knowledge) acknowledged any "duress" or "necessity" defense to the statute. The statute has broad extra-territorial reach, such that virtually any resident of the Gaza strip who paid taxes to the Hamas-led government is guilty of violating its provisions.

It is obvious that such a law could sweep into its net lots of morally innocent people who casually give money to family members, mosques, or charities with ties to FTOs. Most organizations that operate in FTO-controlled territory -- the Gaza Strip, the Jaffna Peninsula in Sri Lanka, much of Columbia -- must by necessity pay money to an FTO simply to survive. Most people do not hire private investigators or accountants to trace where their aid ends up, and scienter surrounding donations can turn on coin-toss of a prejudiced jury's verdict. So the sanity of the law depends entirely on prosecutorial discretion.

Do U.S. Attorneys exercise sensible judgment in choosing their targets? As I suggest after the jump, I have my doubts.

The poster child for prosecutors run amok is Fahad Hashmi, the guy who was busted by the feds for storing those ponchos and socks for a friend who flipped to the feds. Hashmi might be an outlier, but the cases touted by the feds as evidence of the law's efficacy strike me as worrisome or even perverse: What, for instance, did the Holy Land Foundation prosecution accomplish, beyond depriving people in the Gaza strip of money for hospitals, which are commonly Hamas-affiliated?

If one were uncharitable, one might suspect that federal prosecutors pursue trivial or harmless targets just to rack up their terrorism-busting numbers to assuage Main Justice that they are taking terrorism seriously -- a suspicion that is fueled by the notorious Covertino case, in which a Michigan prosecutor ended up as a defendant himself (both civilly and criminally) for being over-eager in seeking convictions of three Muslim men.

For libertarian-inclined lawyers, therefore, Holder's position on "material support" prosecutions" will be a matter of intense interest. Some guidelines about what constitutes truly culpable "material support" would be welcome.

Tuesday, September 16, 2008

Philosophers and Family Values: “Repro-normativity” as a contested norm in academia

This summer, I had the pleasure of writing a response to Punishing Family Status by Jennifer Collins, Ethan Leib, and Dan Markel (appearing soon in BU Law review with a reply). In the course of our e-mailing back and forth, “Coleibkel” introduced me to the exquisitely bizarre neologism, “repronormativity,” which apparently denotes the belief that the raising of children is normatively desirable. Discovering that I have repronormative beliefs was like Monsieur Jourdain’s discovery that he had been speaking prose all of his life without knowing it. Repronormativity, like "bionormativity" or “cognonormativity” (my own neologisms signifying the belief in the intrinsic value of life or consciousness, respectively) seemed too obvious to worthy of a special term. Assuming that you positively value your own life, you ought to acknowledge that conferring life on others confers something of value. (And, if you do not value your life, you really ought to kill yourself to leave more room for the rest of us). Alternatively, if you regard value as the result of human choice (i.e., each person legitimately values whatever they happen to choose), then conferring life on someone is a good turn, because a human cannot make choices, even the choice of suicide, unless he or she exists. Conferring existence on others, then, is objectively good whether one’s master value is autonomy or welfare, because more humans means (ceteris paribus, of course) more autonomy and more welfare.

So, of course, I’m “repronormative”: Who isn’t?

A lot of academics, it turns out. Going back at least to Jan Narveson, Utilitarianism and New Generations, 76 Mind 62 (1967), there is a rich array of philosophical arguments that one confers no benefit on a person by causing them to exist. (David Velleman, a fellow NYU prof, has recently offered such an argument in "The Gift of Life"). Just for the record, I tend to take the different view defended by Derek Parfit in Reasons and Persons 487-90 (1984): In nutshell, Parfit’s argument rests on a claim of symmetry: If it is reasonable to believe that one harms someone by causing them to cease to exist, then it is equally reasonable to believe that one confers a benefit on someone by causing them to exist.

I do not wish to rehearse any of these arguments. Instead, I wish only to note that certain philosophers’ embrace of Narveson’s position smacks of misanthropy rather than reasoned argument. But here’s the good news: This misanthropy undermines both their credibility and their place in the gene pool. As I dislike misanthropes, I find both of these consequences to be comforting, as I shall explain in more detail after the jump.

Is there something misanthropic about adopting the premise that conferring existence confers no benefit? I distinguish misanthropy from the acceptance of unpleasant conclusions by the strength of the premise that implies the conclusion. Of course, if an indisputable premise leads to a disheartening conclusion, then it is our philosophical duty to accept the latter. But philosophers frequently display a willingness to deduce inhumane consequences from a dubious premise, when the decently humane response is to scrap the premise for the sake of humanity. In such a case, one suspects that the premise is the pretext rather than the reason for their baleful deductions: They like being gloomy because it gives them a certain tough-minded cachet to distinguish themselves from the laity. But this is like a captain’s insisting on going down with his ship even when there is plenty of room in the life raft, just because the captain cannot bear to sit in the same boat with the passengers from steerage. This is not principled intellectual rigor; it is ordinary snobbery.

It seems to me – an admitted philosophical amateur – that it is eminently debatable whether one benefits a person by causing them to exist. (Read Parfit’s Appendix G if you do not believe me). I am not sure whether such a premise leads ineluctably to any repugnantly pessimistic conclusion. But suppose that it did: Suppose, for instance, that, if one accepted the premise that it is no benefit to be born, then it would follow that we’d have no reason to prefer a future universe inhabited by humans over a universe devoid of any intelligent life whatsoever. The intuition behind such an inference is that, if those future humans do not exist now, then they’d have no interest in coming to be. Why take the trouble of creating them, an effort that will lead to at least some suffering on their part? As one Herman Vetter observed in Mind:

“[P]eople should be discouraged from having children. If such tendencies are successful enough, the number of men on earth may begin to decrease, and if such development continues long enough, the human race will disappear. This, however, would not at all be a deplorable consequence in… my own opinion: the existence of mankind is not a value in itself. On the contrary, if mankind ceases to exist, all suffering is extinguished perfectly, which no other human endeavour will be able to bring about. On the other hand, of course, all happy experiences of men will disappear. But this … would not be deplorable, because no human subject would exist which would be deprived of the happy experiences.”

80 Mind 301, 303 (1971). A South African philosopher, David Benetar, later extended this pleasant rumination into an entire book with the cheery title, “Better Never to Have Been,” in which he argues that humanity’s non-existence is a positive good.

Such nihilism (a term that here refers not to having no values but rather the valuing of nothingness over existence) is, of course, insane despite – or perhaps because of -- its logical consistency. (Insane people are notoriously consistent: The man who thinks that he is a teapot usually has a watertight account to rebut his critics). The sane response to a nihilistic conclusion is to jettison any disputable premise that leads to the nihilism, on reductio ad absurdum grounds. As I observed above, the premise that we do not benefit those to whom we give life is, at best, debatable. The philosophers’ willingness to stand by debatable premise, therefore, is best explained as a psychological dysfunction rather than philosophical courage or, perhaps, insincere posing. The nihilism is not the consequence of an argument; the argument is just a pretext for a showy display of a chic sort of pessimism.

But here is the good news: To avoid the charge of hypocrisy, David Benetar, Herman Vetter, and their fellow travelers presumably are not having any kids to whom they could convey their views or moods. Their arguments, likewise, are not likely to generate a lot of followers, being largely the result (I suspect) of snob appeal rather than intellectual rigor. By outlining the logical consequences of embracing the premise that conferring existence is no benefit, these philosophers have inadvertently provided an argument reductio ad absurdum in favor of repronormativity. For that service, we repronomativists ought to be suitably grateful.

Tuesday, August 12, 2008

Dante and Homophobia

A conservative friend of mine protested my recent post that used the term “homophobia” to refer to persons who disapprove of same-sex sexual relationships. He noted that such disapproval is not necessarily “phobic”: It could simply be based on some perfectly rational theory of sexual morality. As a theoretical matter, I tend to think that my friend is correct: Disapproval of homosexuality is not necessarily phobic, as a matter of logical necessity. But much – probably most -- modern disapproval is, in my view, probably phobic as a matter of fact. In any case, my friend’s comment gives me a pretext to share my enthusiasm for the Hollanders’ new translation of Dante’s Commedia, about which I’ll say more after the jump.

By “homophobic” disapproval, I mean disapproval of others’ desires motivated by fear that one shares in those desires. The disapproval of others serves as what Freud would call a “counter-attitude,” a way of repressing one’s consciousness of what one shares with the object of disapproval. Such disapproval, therefore, can serve its phobic function only if the disapproving persons want to believe that they lack the desires that they condemn in others.

With this account of homophobia in mind, turn to the Hollanders’ translation of Dante’s Commedia for an example of non-phobic disapproval. (Indeed, that’s the real point of this post -- to introduce the Hollanders’ extraordinary Princeton Dante Project website, to those who have not already discovered it. The website contains in searchable form the entire parallel Italian text and Hollanders’ recently published English translation of the Commedia, complete with Robert Hollander’s line-by-line commentary).

In Canto XXVI:31-35 of the Purgatorio, Dante and Virgil enter the terrace where the lustful burn off their sins by walking through fire in concentric circles, with the sinners in different circles giving each other a chaste kiss as they pass each other. Homosexuals and heterosexuals are all lumped together: “There I can see that every shade of either group/ makes haste to kiss another, without stopping, / and is content with such brief salutation….” As Robert Hollander notes, “[t]his remarkable simile, a rare medieval manifestation of a moment of fraternal affection between heterosexuals and homosexuals, is striking.” Dante the Pilgrim plunges right into the fire with the rest of the lustful, homosexual and heterosexual alike, acknowledging the essential similarity of his desire with theirs.

To the Medieval mind, in short, lust is lust, whether same-sex or opposite-sex. (To be sure, Hollander disputes modern glosses that “sodomy” does not get a special punishment in Canto XV of the Inferno as “violence against nature.” But I am not sure why Hollander treats “sodomy” – anal sex -- as a sin peculiar to same-sex intercourse in his commentary on Inferno XV:104-114. Latini Brunetto is guilty of violence against nature because he copulated in a sterile way – anally – and, therefore, is punished by running on a burning, sterile desert for eternity. Anyway, for amateur Dante fans like myself, the debate is nicely summarized by Deborah Contrada, "Brunetto's Sin: Ten Years of Criticism (1977-1986)" in Dante: Summa Medievalis 192-207 (Charles Franco & Leslie Morgan eds. 1995)).

To approximate Dante’s attitude towards sex, modern critics of homosexuality would have to condemn all “barren” non-procreative sex – which means rejecting all contraception, heterosexual oral and anal sex, masturbation, etc., as violence against nature. But this broad rejection of recreational sex is virtually non-existent in today’s America. One does not often hear anyone who condemns homosexuality declaring, “I struggle with homosexual and other non-procreative sexual desires just like everyone else – but I suppress those desires because I know that they are immoral.” The critics of homosexual desire are, therefore, fundamentally different from critics of adultery or extra-marital sex, because the former never concede, like Dante, that they share in the sinful desire that they condemn.

It is this sense that modern condemnations of homosexuality really do seem phobic to me. One could imagine someone’s impartially condemning all non-procreative sexual intercourse. Such a person would not be guilty of phobic beliefs. They would merely be regarded as deeply eccentric by most voters.

Monday, June 09, 2008

The obscurity of intellectuals: An initial taxonomy

When I denounced the obscurity of intellectuals last week, several (perhaps justifiably) irate responders noted that I did not explain why I liked some obscure writers and disliked others: I had no definition of permissible obscurity, beyond my own prejudices (and an admittedly unwholesome desire to tap on the glass just to watch the snakes jump).

There is something to that objection. Why, I ask myself, do I like puzzling through some stuff that many find obscure (say, Quine’s arguments against the analytic-synthetic distinction), whereas even reading a book review by Judith Butler on Arendt’s Jewish Essays induces nausea (of the non-Sartrean variety)?

My critics are right: I ought to have something to say about the matter.

To make some amends, here’s an initial distinction between two types of obscurity, which I hereby dub “the technical abbreviation” and “the shibboleth.” The first seems to me useful; the second, pernicious. (By the way, I do not claim that this dichotomy is an exhaustive taxonomy of obscurity: I’m leaving out three other varieties of obscurity, denoted by myself with appropriate obscurity as “foundational ineffability,” “exoteric self-protection,” and “parabolic mimesis.” Holding the copyright on all but the second term – Leo Strauss’s estate’s got that one – I’ll provide a definition of all them in a later post).

What follows is (1) how technical abbreviation differs from shibboleth; (2) why the former is good and the latter, evil; and (3) why I think that Judith Butler – or, at least, her epigoni – tend to use the latter rather than the former. (Okay, that last is just to provoke you across the “jump”: I’ve really nothing more to say about Butler).

1) The technical abbreviation is simply a term, phrase, proper noun, Greek letter, or other symbol that substitutes for a complex but uncontroversially well-defined concept. “Elrod v. Burns,” the “Euler–Lagrange equation,” pi, and “offsides” (as in soccer) are all examples of technical abbreviation (herein illustratively denoted “TA”). Think of “TA” as a promissory note, a means to simplify conversation among the initiated by making bulky concepts more portable.

The critical point about promissory notes is that they must be redeemed on demand. The person who presents the term must be able to obtain cold, hard, cash value (to use William James' term) -- that is, a clear account of the TA’s sense, reference, or use (take your choice) -- from the issuer. Otherwise, the putative TA will suffer from inflation. In a linguistic version of Gresham’s Law, the inflated term is thrown around promiscuously precisely because it does not have to be redeemed, while genuine TAs are carefully hoarded precisely because they have real value and are costly to deploy. Eventually, the inflated term is declined as valueless by those to whom they are presented.

As an example of a real TA, take J.L. Austin’s concept of “infelicities.” The term stands for a complex idea – in brief (and this is just another, slightly longer TA), a misfired or abused performative. Note that I just gave you three more promissory notes – misfirings, abuses, and performatives – in exchange for one. That’s a lot of redeeming to do – but Austin redeems all of his promises admirably in Lecture II and III of “How to do Things with Words.” (Read it yourself: It’s summertime, after all. Pp 12-38 of the 1975 edition). In general, the Brits seem to be pretty good at redeeming their TAs. (Perhaps it is because they invented central banking in 1694 and therefore know the value of a sound banknote).

When Tommy Crocker accuses me of rejecting all academic disciplines that deploy TAs – in his words, “[l]aw, philosophy, economics, psychoanalysis, literary theory” – he does me an injustice. I specifically stated in my initial post that I was referring to obscurity deployed to secure social status by signaling membership in an elite. TAs are not really obscure in any undesirable sense, so long as the issuer stands by with sufficient specie to redeem the note.

2) My initial post referred to a different use of obscure terms, what I dub (incidentally, hereby using a performative) the “shibboleth.” Taking my cue from Judges 12:1-6, the shibboleth is any term deployed for the purpose of distinguishing insider from outsider. The key aspect of the shibboleth is that its users refuse to redeem the note with anything except a further note. All one gets from them is more pretentious verbiage, which is just more promises for future payment of real cash at a later date. This is a sure sign that the term is functioning as a badge rather than as a medium of genuine intellectual exchange.

Note that a shibboleth can simultaneously function as a TA. (“Shibboleth,” after all, is Hebrew for sheave of grain: if you need grain in Israel, the term could come in handy). The defining mark of a shibboleth is its user’s purpose: The user does not want the term to serve any function beyond identifying those people who ought to be (metaphorically speaking) killed like the Ephraimites crossing the Jordan. Hence, the shibboleth cannot be redeemed (i.e., explained) without destroying its value as a shibboleth.

(3) Do Judith Butler’s terms function as shibboleths? I leave that for you, my forgiving audience (all three of you), to judge. My only data point from the last blow-out was that, when Stuart Buck repeatedly asked for someone to clarify Butler’s prose, he got no response. (One Matthew Cole actually ponied up in response to my post, by defining Butler’s concept of “performative” as essentially equivalent to Austin’s. I’ll accept that check any day, redeemable at J.L. Austin’s Bank of Lecture I).

Really, I do not care to debate further the merits of Butler’s prose. I’m more interested in the more general point – which is whether there is a social class out there (call them “intellectuals,” call them “Herbert”: The choice of phonemes is a matter of indifference to me) who routinely deploy TAs as shibboleths. This class tends to specialize in matters both speculative and abstract, delivering propositions that are hard to verify, ideologically loaded, and poisonous in their capacity to inspire vindictive quarrels.

I do not like this unnamed class of people. I believe that they impede genuine intellectual exchange with inflated terms of dubious redeemability. I call their social practices “intellectualism” as a sort of analogue to “scientism,” meaning the deploying of scientific-sounding terms as a conversation-stopper. I believe that certain currents of ideas from certain nameless European nations, have a greater tendency to promote shibboleths than others. (Incidentally, these currents also generate some good TAs as well -- and the TAs can be converted into shibboleths, as I noted above). Finally, I see a lot of these folks in the Village, where I work.

I admit that the credo above is nothing but a summary of my prejudices. I might be a philistine – indeed, certainly am, about some matters. But, I say, better a philistine than a phony. And you can take both of those TAs to the bank.

Wednesday, June 04, 2008

A couple weeks ago, Kent Greenfield (Boston College, left) asked me to link his Huffington Post op-ed on
Attorney General Michael Mukasey's commencement address at Boston College this year. At the risk of inviting another "train wreck" - Rick's posts are the gift that keeps giving - it turns out that the gist of Kent's observation merits being included as Part 2 in this series.

Here's Kent's comment:

[The Attorney General] urged our graduates to learn to filter out their own moral and political views when they "do law," so they can "advise clients that the law permits them to take actions that you may find imprudent, or even wrong."

So the message of the Attorney General of the United States to the law graduates of today: be a technocrat. Once the law is articulated, your job is done.

Mukasey does a disservice when he implies that the law is a simple, straightforward, technical enterprise. Of course there are easy legal questions (which include, by the way, that waterboarding is torture). But as our students learn in the first week of law school, the most important questions are unlikely to have answers that spring fully formed from some text. What good lawyering requires is not just a mining of a range of authorities to determine the best reading of various texts (though even this bare minimum was apparently not done in the authoring of the torture memo). Also necessary is an honest acknowledgment that when gaps are to be filled, there is no neutral way to fill them that avoids the need for political, philosophical, or moral justification.

Once again, "is" butts up against "ought."The interesting twist here is that not to decide is to decide. By
acting, in Kent's words, as a technocrat, one effectively concludes
that whatever "is" is, it's the same as "ought. What follows the jump is far less down-to-earth than before, and like Rick, I welcome anybody who wants to check it for philosophical malpractice.

Let's return to recitation of the Hume dictum for a minute. Hume's concern was not only a reading of the "is" into the "ought," but the other way around: suggesting something was an empirical fact when it was simply the speaker's reasoned derivation, rather than observation in experience, of what ought to be.

As moral good and evil belong only to the actions of the mind, and are deriv'd from our situation with regard to external objects, the relations, from which these moral distinctions arise, must lie only betwixt internal actions, and external objects, and must not be applicable either to internal actions, compared among themselves, or to external objects, when placed in opposition to other external objects.

Indeed, in Hume's view, not only is there no reasoned moral connection between external events, "there is no connexion of cause and effect, such as this is suppos'd to be, which is discoverable otherwise than by experience, and of which we can pretend to have any security by the simple consideration of the objects."

Kant reacted to Hume by claiming there was a priori synthetic truth, like causation, beyond mere experience, and that reason was capable of deriving moral imperatives, and particularly categorical imperatives, that were universal. Those are "ought," not "is" statements, and they are not assertions of truth or falsity about objects. Hume, on the other hand, rejected the notion that reason could derive moral ends (remember, it's just slave to the passions). So he was making the point that whatever the source of the "ought" might be (to him, custom, not reason), it certainly did not constitute empirical fact.

The problem with Hume leads, in my mind, to Mukasey's thesis. Hume makes it clear saying "it ought to be so" doesn't make it so. He leaves us, however, wandering on the source of the "ought." So the question is whether enough information about the "is" will lead us to the "ought." Mukasey's approach, for lawyers at least, is to punt. Don't worry about the "ought;" tell your clients what the law is (if that's possible, to Kent's point), and let them make the decision. Personally, I'd never hire a lawyer to advise business clients who took that approach, but that's another matter.

I'm an old veteran of the data-intuition wars within the corporation. After years of command-and-control, the quality movement had the insight that many decisions were not based on data, but on corporate executives' intuition, much of which proved to be wrong. So the pendulum swung mightily between the mid-1980s and the turn of the millennium from what we might call corporate rationalism (making decisions on logic and reason) to corporate empiricism (making decisions based on fact). (Whether that "fact" is really fact - Hilary Putnam's critique of the fact/value distinction which Rick refers to in the most recent post - will be the subject of Part III.) I can remember many meetings with the Six Sigma and "operational excellence" gurus, and my suggesting to them that collecting data was all goodness, but inevitably we would get to a point where the question what we ought to do would again require a leap from what we established as the inductive rule within the data to a choice of action.

My friend and co-blogger Bill Henderson and I had an interesting public (albeit buried) exchange on this point a few weeks ago. Bill found a talk given by Charles Munger (founder of the Munger, Tolles law firm and Vice Chairman of Berkshire Hathaway) entitled "The Causes of Human Misjudgment." The substance was a summary of behavioral economic insights (notably those of Kahneman and Tversky) into what we might call "cognitive error." True to his open-mindedness and hunger to learn, Bill said that he was interested in applied behavioral economics as a means of "honing [his] own decisionmaking processes to eliminate bias and susceptibility to manipulation."

It's a noble end, but I sounded a word of caution in thinking that the process of understanding the empirical fact of one's biases would lead to better decisions. It is far easier to do an assessment of somebody else's tendencies than your own. The problem, of course, in assessing your own bias and behavioral tendencies is the infinitive regress as well as the self-recursiveness of the exercise. In short, you assess your own behavior, and decide you have the tendency, and correct it. But was your assessment affected by the tendency (or another one)? And was your assessment of the assessment so affected? And so on.

The empirical dream is to unite "is" and "ought" with a complete understanding of the "is." Kant didn't think that was possible. Your reason wants to follow the infinite regress to the infinite end, and to see the world objectively. It is unrestrained by the empirical world. So reason is capable of positing (or playing) God - that Being that can be both subjective and wholly objective at the same time.

In short, Mukasey's view is unsatisfying to those of us who care about the "ought" beyond the positive law, because it simply leaves out any job for the lawyer other than, as Kent says, the technical job of relating what the law is or might be. But it's equally illusory to think that merely a better understanding of the law, or indeed, any set of empirical data of the law is going to overcome the objective-subjective divide, and tell us how to choose among alternative actions. The inspiring thing about Bill's vision (in contradistinction to Mukasey's) lies in a slight corruption of Robert Louis Stevenson's dictum that it is better to travel hopefully than to arrive. In this regard, it is impossible to arrive on data alone, but it's no reason not to travel hopefully nevertheless.

Tuesday, June 03, 2008

The French versus Scottish-English styles in American Writing

The ruckus that I caused with my (admittedly intemperate but, I hope, harmless) Bronx cheer for Judith Butler reminds me of a serious topic -- which is the durability of an Brit-French divide in American political writing. After pondering the matter deeply (i.e., for at least eight minutes -- practically a research leave in blogtime), it occurs to me that the split may have existed since the 1790s.

The elements of the 1790s conflict are familiar: Pro-Scot/English writers accuse the pro-French ones of being doctrinaire, ignorant of real-life experience, excessively abstract, hostile to ordinary conventions (in the 1790s, revealed religion), and willing, in the name of arcane theories, to perpetrate atrocities. Pro-French writers accuse the pro-English ones of being bigoted, benighted by custom, or (worse) willing to exploit the irrational customs of others for elitist ends. The classic Tory stylist is often said to be Edmund Burke, but I am persuaded by Don Herzog that this is a mistake: Burke was, after all, a Whig of sorts and had no difficulty with radical Scottish social theory (e.g., Adam Smith) just so long as the "lower orders" were not exposed to it. A better example of the anti-rationalist English Tory style is Samuel Johnson's "Taxation no Tyranny" or Hannah More's 1793 "Village Politics." William Godwin's Enquiry Concerning Political Justice (1796) is equally paradigmatic for the Englishman's pro-French style. A classic example of the gruff old "common-sensical" Tory on the American side of the Atlantic would include Gouvernour Morris (especially his journal on the French Revolution).

Does our modern division in stylistic sensibilities (often misleadingly termed a "Continental-Analytic" division) have any genealogical relationship to the 1790s divide on Theory versus Experience? Any such argument, of course, would have to come to terms with the influence of Hegel and Heidegger on the French after World War II. But here's a hypothesis worth considering: The post-1945 combination of the German Hegelianism and Existentialism with a pre-existing French Revolutionary tradition of radical social criticism created a rhetorical style deeply antithetical to the Scottish-English tradition of empiricism, logical analysis, and incremental social reform. When John Searle and W.V. Quine denounce Derrida or (on a much more preposterously trivial level) when I make snide remarks about Judith Butler, we might be playing out a drama that has been going on since Hamilton and Jefferson tangled over coinage and manufactures. The new post-'45 element in the familiar donnybrook is that now the Brits and Yanks accuse the French and Germans of not only being hostile to experience but also (ever since they started reading Hegel and Heidegger under the influence of Sartre and Kojeve) also bad writers.

How seriously should we law profs take this rivalry?

May I suggest that we do so in the same terms as the Harvard-Yale game
-- good, clean fun, but nothing more? If anyone wants to take a poke at
my favorite philosophers -- Hilary Putnam, Quine, Kripke, Donald
Davidson -- I'll be pleased to listen, especially if you are funny.
(Yes, I think that Butler writes awfully -- but I can understand
someone who thinks that Davidson's discussion ‘Schnee ist weiss,’
Tarski's Convention T, and so forth is duller than a stock exchange
report). And, in response to Professor Heller: Yes, I'm a fan of
Pirandello, too. Not to mention Paul Claudel. As for Heidegger -- no
one who loves Arendt's work as much as we both do can afford not to
take him seriously. But Sein und Zeit: Mein Gott! It just took too much Zeit and made me want to end my Sein.

Monday, June 02, 2008

Why I am an anti-intellectual

I am sorry to have offended Professor Heller with what I took to be a lighthearted gibe at Judith Butler. Although my assessment of her stuff is basically the same as Martha Nussbaum's, I am happy to attribute my mystification at her language to my own intellectual limits -- especially if this admission will excuse me from re-reading the baroque prose of Bodies That Matter (1993). Life is too short to struggle with an author when the payoff in understanding (for instance) "performativity" seems to be no more than the banal idea that people do stuff to exhibit their gender identity that is, in this sense, "socially constructed." I'd rather take another go at Kant's transcendental deduction. But, again, it could be -- probably is -- a sign of my own limitations or even, as Patrick O'Donnell notes, "sour grapes": I just might lack Professor Heller's depth or patience or humility.

I must, however, highlight one of Professor Heller's statements that I thoroughly endorse: I am most certainly an anti-intellectual. (I am not a "know-nothing" and hereby declare all-out war on the abuse of this phrase, which expression refers to the American Party of the 1850s or, more generally, nativism, and otherwise is just incoherent blather. What does it mean to be a "know nothing" in any other sense? That one admits to, or is proud of, knowing nothing? That one knows nothing in fact? Surely, "ignoramus" works better for the latter, and "bigot," for the former).

But to continue: My confession of being an anti-intellectual requires a bit of explanation. Being anti-intellectual is not the same as being anti-intellect. My beef is with a particular social class -- the "intelligentsia" -- and not with the practice of using one's intellect to reflect on experience. In my experience, intellectuals (as a class) are ideologically intolerant, easily offended by ordinary humor, and pretentious in their prejudices, which they disguise as universal truths. (Whether any of these adjectives applies to Professor Heller's response to my little poke, I leave it for others to judge).

Moreover, I find a direct relationship between the academic obscurity of self-consciously "intellectual" writer's prose and the willingness of that writer to justify the unjustifiable.

It takes the convoluted abstractions of a Carl Schmitt or a
Heidegger to offer apologetics for Hitler; a Sartre, to temporize about
Stalin; a Foucault, to defend Khomeini. In this respect, I stand with
George Orwell who spent the 1930s and 1940s denouncing the obscurity of
intellectuals' prose as a cloak for tyranny (and, incidentally, who was
also accused of being an anti-intellectual). Intellectuals spray
polysyllables like squid ink, to evade the democratic decencies of
conversation. I'd like not to be one of their number.

I am aware of, but never have been persuaded by, various efforts to
justify the deliberate obscurity of intellectuals. Pierre Bourdieu, for
instance, offered a defense of academic obscurity in the introduction
to his book, Distinction. Alas, it was too obscure for me to
understand. Instead, I tended to think that the rest of Bourdieu's book
provided a better account of the social function of academic obscurity:
Obscurity is what Bourdieu dubs "cultural capital." It is akin to
knowing to wear white shoes only before Labor Day or which jazz CDs to
play at a Upper West Side academic party -- a sort of union card that
one can flash for admission to a privileged class.

Judith Butler offered a defense of her obscurity
in the New York Times, in which she argued that obscure prose was
necessary to get outside of the oppression built into ordinary
language. But she gave no examples of instances in which her prose
served such a function, and I remain skeptical. Her standard argument
that gender bias is built into language can, I think, be communicated
effectively without the name-dropping and byzantine insider jokes that
are (again, my view or prejudice) the hallmarks of Butler's style. I
tend to think that simple questions simply asked a la Socrates can
unveil much more incoherence and oppression in ordinary social
conventions that any numbers of references to “hegemonic discourses”
and the rest.

This is not to say that obscurity is always unnecessary: Sometimes
tough ideas call for tough prose. (Again, think of Kant's
transcendental deduction, which cannot easily be translated into plain
language, because it asks difficult questions about the most basic
grounds of experience and language. Of course, it does not help that
Kant was German: The Teutonic style famously lacks the light touch). To
my mind, Butler's prose mimics this necessary obscurity like a Viceroy
mimics a Monarch butterfly -- to avoid being devoured by predators who
are scared off by the appearance of tough ideas that are hard to
swallow.

So, yes, I confess to disliking intellectuals and the practice of
intellectualism, which, I believe, impedes everyone’s intellect with
pretense and ostentation. But I could be wrong about Butler, and I'd be
happy to be proven so. After all, I do not pretend to be an
intellectual.